Justice Committee on May 10th, 2012

[The Chair, Conservative, Dave MacKenzie]

This is meeting 36 of the Standing Committee on Justice and Human Rights. The orders of the day, pursuant to the order of reference of Wednesday, February 15, 2012, are Bill C-309, An Act to amend the Criminal Code (concealment of identity).

We are resuming debate on amendment NDP-1 to clause 2.

I have Madame Boivin.

[Françoise Boivin, NDP, Gatineau, QC]

Thank you, Mr. Chairman.

I will be brief, because I presented all my arguments last Tuesday. I would simply like to add one thing with respect to the NDP's first proposed amendment to Bill C-309. We used only one hour to express our views, after hearing from witnesses. I was therefore surprised to hear government members claiming that we were being obstructionist, as that is not at all the case.

It is important for me to address this question in the context of the committee's work. I can assure you that the only time you will see us filibustering is when you impose time restrictions on us. Otherwise, people will simply be expressing their opinion about what they heard and, as far as I know, that is what democracy is all about.

My colleague, Brian Jean, may disagree with me. We can disagree with one another without being rude. This amendment is not frivolous. It is not completely out of touch with reality. On the contrary, it is supported by a number of witnesses. It seems the people of Canada don't have a clear understanding of this bill's impact. Some people believe—and we see this in polling results or in what some media have been saying—that, once this bill has been passed, it will no longer be possible for anyone to take part in a peaceful and lawful demonstration while wearing a mask or disguise.

That being the case, we will end up with some problems, whether we're talking about Bill C-309, as currently worded, or Bill C-309, as it could be amended to make it more consistent with the Criminal Code and existing charter legislation in Canada.

I am going to stop there, because I simply wanted to point out that we are not filibustering. We are expressing our views with respect to the amendment in a democratic manner.

Thank you, Mr. Chairman.

[The Chair, Conservative, Dave MacKenzie]

Thank you, Madame Boivin.

Mr. Goguen.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

Thank you, Mr. Chair.

Obviously we're talking about NDP amendment one, and I'll start with the obvious: freedom of expression and the right to assembly are constitutionally guaranteed.

It's my take that Bill C-309, once enacted, will operate as a further protection of those rights. We had witness Chief Graham, who at the time of the Vancouver riots was the police chief, and Sargeant Webb, a policing expert in crowd control, both testify. They have explained the extent of the measures police authorities take to ensure that peaceful assembly is protected. There are ongoing communications with the crowd; there's direction of traffic to permit movement. They go to no end to make sure that peaceful assembly is a well-respected constitutional right.

They have also explained how peaceful assemblies can quickly escalate to an unlawful assembly and/or worse, a riot. They explained that those who protest can be categorized into four categories. At one end of the spectrum are those who are expressing a point of view or trying to make their point peacefully.

On the other end of the spectrum there are the anarchists—the Black Bloc, as they are known—whose sole objective is to create mayhem, disruption, and violence. The whole objective of Bill C-309 is to deter the wearing of masks and the disruptive activities that the Black Bloc would undertake. Deterring such activity is a protection of the rights of those who want to peacefully assemble and make their point of view known, as they properly can per the charter.

There has been some talk about section 351 of the Criminal Code, which we're told is sufficient, and that Bill C-309 as it stands is basically not necessary. We had Chief Graham tell us that of all the charges laid in the Vancouver riots, a grand total of two were laid under subsection 351(2). The reason was that it was difficult to identify people. Why? They were wearing masks.

In a sense Bill C-309 is in addition to section of the Criminal Code, and I have stated what I believe its purpose is.

With regard to the current activities that are going in Montreal, it's very timely that this bill is being brought forth. We know this from watching the news about the mayhem going on there. Obviously some of the students are protesting for very valid reasons; others are there to create havoc. It's hard to tell them apart.

Mr. Blake Richards received an email from Alain Cardinal, who is the

Chief of Legal and Internal Affairs for the City of Montreal.

Mr. Cardinal was telling us this:

I saw in the newspaper this morning that the Minister of Justice will support your Bill. If you need testimony from the SPVM (Montreal Police Department), it will be our pleasure to appear before any House Com[m]ittee.

Obviously we won't need his testimony at this point because we have concluded that part of the committee.

Also, I saw there was an article in La Gazette de Montréal where the mayor, Gérald Tremblay, was reported as saying at a news conference that demonstrating was a democratic right but that the citizens had the right to protection from rock-throwing vandals—the Black Bloc section, the anarchists—those disrupt traffic and commit acts of violence. He said:

When demonstrations repeatedly lapse into violence and acts of vandalism, not only are Montrealers made to pay the price, but the image of the city is tarnished as well.... We're not talking here about the Santa Claus Parade, the Carifiesta or [the] Just for Laughs festival.

It's no laughing matter, in any event.

With regard to NDP amendment one, we will be voting against this amendment because in our mind it basically guts the entire intent of the bill. My comments will also hold for NDP amendment two. Number one deals with unlawful assembly and the other deals with the riots. The first amendment deals with the riots.

The NDP motion would create a specific intent offence. This would increase the burden of proof. It would essentially require the crown to adduce evidence from which the court could infer that the accused intended to take part in a riot and disguised him or herself for the purpose of participating in a riot.

In contrast, Bill C-309 only requires that the crown prove the accused participated in a riot and while doing so was disguised. At that point the burden of proof would shift to the accused to prove there was some lawful excuse for concealing his or her identity.

The NDP amendment does not provide the accused with an opportunity to raise a defence that there was some lawful excuse for concealing his or her own identity. This defence would ensure that criminal liability does not attach to persons who wear a mask or other facial coverings for a lawful purpose, such as for religious or cultural reasons, or to protect health or safety.

Lastly, the inclusion of “coloured” in the NDP amendment could be intended to address face painting. This would already be captured by Bill C-309's basket phrase “or other disguise”.

I also note in the Criminal Code the annotation that the terms by the Supreme Court of Canada as having a lawful excuse were upheld because there is a presumption of innocence. I would like to ask the specialists on this—

[The Chair, Conservative, Dave MacKenzie]

The officials.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

—the officials, thank you, to comment on the issue of the burden of proof that the NDP amendment would impose upon the crown. Are they here today?

[The Chair, Conservative, Dave MacKenzie]

Yes.

Would the officials come forward, or an official.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

She's not wearing a striped sweater, Mr. Chair.

[The Chair, Conservative, Dave MacKenzie]

I want to thank you for being here. I hope you heard the question.

Before you begin, if you would identify yourself for the purpose of the record, we'd appreciate it.

[Carole Morency, Director and General Counsel, Cabinet and Legislative Agenda, Criminal Law Policy Section, Department of Justice]

Good morning. My name is Carole Morency. I'm general counsel with Department of Justice, criminal law policy section.

I believe the question was to explain or address the issue about the specific intent aspect of the amendment NDP-1. Is that correct?

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

It would create a specific intent offence. How would this increase the burden of the crown to prove the offence?

[Carole Morency]

I understand the NDP-1 is taken from subsection 351(2). In that section, and as worded in the motion, there would be a requirement for the crown to prove that the accused had the specific intent of committing an offence, in this case the offence under either the riot or the unlawful assembly offence for that purpose, with the specific intent of doing that, and had a mask on toward that end.

In general, specific intent offences are more difficult to prove. They are not the norm; they are more exceptional in the Criminal Code. The crown would have to lead evidence specifically to show that the accused, in that instance, was intending to commit the offence, by participating in a riot or participating in an unlawful assembly. If you look at the case law under subsection 351(2), the courts have been very clear in saying that there has to be that specific intention, and absent that, the case is not made out.

So there is a distinction between the approach proposed in the amendment and the approach proposed in Bill C-309. It is an added element. It is one that can be made out in some cases, but it's an additional thing that the crown has to prove and it does make it more difficult to make out the offence in this case.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

And in Bill C-309 the intent that it will be necessary to prove would be what?

[Carole Morency]

In Bill C-309, the way the bill is proposed, the offence that would be committed is first the offence of riot or unlawful assembly. Then the crown would have to show that the person wore the mask to conceal their identity.

There were some questions, I understand, from looking at the transcripts of the earlier committee meetings, about the approach taken here. The committee might be interested to know that section 255 of the Criminal Code has a similar approach, which is the impaired driving offence. You have a section in that model. If there's an impaired driving offence, it's one penalty, but if the impaired driving causes bodily harm or death, you have a higher penalty that applies. I would suggest this is a similar approach.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

Of course, there is the lawful excuse defence also. I wonder if you could comment on that.

[Carole Morency]

As your remarks indicated, the distinction between the NDP amendment, which would not provide the accused with the defence of a lawful excuse, and Bill C-309 is that the lawful excuse defence is provided for in the bill. I understand, from looking at the comments made in previous committee hearings, that examples have been given. Wearing a facial covering for religious purposes would be a lawful excuse. It could be for a health reason. It could be otherwise.

But the way it would work is that in the situation where it's made out that the accused was wearing a mask and the crown leads evidence to indicate that it's for the intent of concealing their identity, then the accused could point to evidence. The burden is not on the accused. All the accused has to do is to point to some credible evidence to show that there was reason, and then it shifts back to the crown to prove that it was not a lawful reason in the circumstances.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

Thank you.

[The Chair, Conservative, Dave MacKenzie]

Thank you.

We'll go to Mr. Woodworth.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Thank you very much, Mr. Chair.

I'm only going to speak, unfortunately, because my name was referenced in some of the comments made at our last meeting by one of the members opposite.

There is an old lawyer's practice whereby, in fact, we generally try to “anonymize”, if that's a word, counsel. We even go to the point of wearing robes in important cases. We do that because in a court of law, when we're discussing legal concepts, what's important are the issues, the evidence, and the principles, not the names and personalities of those involved. Of course, Parliament is not composed of lawyers only, and Parliament does not operate on the rules of courtesy extended in a courtroom. But I will extend that lawyerly courtesy to the member opposite and not mention that member by name.

I quite readily accept anyone who wants to disagree with the legal interpretation I've made. I don't mind that at all. I will say that it's true that in my remarks I did not specifically refer to the fact that the new act would require the wearing of a mask to conceal identity. However, where I think the member opposite erred, in calling my remarks incorrect, was in thinking that it makes any difference and that somehow, the reference in the new act to an intent to conceal identity does not make this an offence of general intent.

Now, I had to stop and think, because it's been about 40 years since I underwent the joys of introductory criminal law. But I'm sure that at that time I was taught a legal principle of interpretation—and it's only an interpretation—saying that there's a presumption that people intend the natural consequences of their acts.

I had occasion last night to check with a member of the bench who is very close to me to inquire whether that person was aware of whether the principle had been overturned or in some way undone by our courts. That member of the bench was not aware that the principle had been overturned.

When I see that this bill makes it an offence to wear a mask, I think there is a presumption that people wear masks to conceal their identities. I'm not saying that it's a presumption that cannot be rebutted. But certainly, the intent in wearing a mask presumes or subsumes an intent to conceal identity, unless that presumption is rebutted.

I think part of the problem that the members opposite have is that again they may not be aware of another old lesson from introductory criminal law, which distinguishes between intent and motive or intent and excuse. The reasons people do things don't necessarily refer to their intent. What makes something intentional is its distinction from being accidental.

My remarks to the effect that the new offence is one of general intent rather than specific intent remain, in my view, quite correct. All one requires to be convicted under the new offence is an intent to don a mask and to keep the mask on while participating in a riot or an unlawful assembly. Quite frankly, I regard that to be a much less culpable intent than the intent required under subsection 351(2), which makes someone much more culpable, because when that person puts on a disguise he or she has to actually be planning to commit an indictable offence. Under the new act, no such planning or foresight is required.

If anything, one could be convicted for the stupidity of failing to take off a mask when you find yourself participating in a riot or part of an unlawful assembly. That's why I would be much happier if this offence that we're considering did maintain a lower penalty than the offence in section 351, because of the difference in the culpability required.

To put it another way and to use more modern language than my first-year law from 40 years ago, this new offence does not require a nexus of intention between the intent to put on a mask and the intent to commit another offence. When one intends to put on the mask or when one intends to keep the mask on, one does not have to do so with any intent to participate in a riot or become a member of an unlawful assembly. There is no nexus of intent.

The only nexus required under this offence is one of circumstance, that is, of time and place. One must have the mask on when one is participating in a riot or is part of an unlawful assembly. The provision under section 351 on the other hand requires the much higher nexus of intention between the intent to don the disguise and the intent to commit, I think, an indictable offence.

Here's an interesting point, Mr. Chair. The fact that the NDP, the opposition, has moved this amendment to import a specific intent discloses that all of their arguments to say this offence already required a specific intent were not really seriously made. If they were actually seriously arguing earlier that Mr. Richards' offence already required a specific intent, they would not feel the need to introduce an amendment to import a specific intent. Or to put it the other way, if they really believe Mr. Richards' bill does require in itself a specific intent, then their introduction of this amendment purporting to introduce a specific intent is totally redundant, superfluous, and disingenuous.

You can take your pick. Either way, this amendment does not commend itself to me, so I will be opposing it.

Thank you.

[The Chair, Conservative, Dave MacKenzie]

Madame Boivin.

[Françoise Boivin, NDP, Gatineau, QC]

Our colleague may have misunderstood what is behind this amendment. It is clear that more is needed than what he seems to think, even in Bill C-309. From the outset, our main argument has been that the riot offence already exists. Mr. Chairman, section 351 of the Criminal Code will still be around after this bill has been passed.

I raised my concern right from the start. I am worried that by using different terminology, we could end up with interpretation issues when the time comes to present the indictment to a court of law. The defence lawyer will stand up and say that he doesn't understand why his client is being charged. The fact is that this is a specific offence involving participation in a riot while wearing a mask or other disguise to conceal identity. I think we have to go back to what Mr. Richards was aiming to do when he introduced his bill.

We have tried to use the same terminology. Basically, we agree with the government when it comes to hoodlums, thugs and criminals taking part in demonstrations which are otherwise peaceful and lawful. People are going to make their views known, something which is not illegal in Canada, thanks to the Canadian Charter of Rights and Freedoms and rights such as freedom of expression and freedom of assembly. We wanted to be sure that there would be a specific offence for these kinds of individuals.

Let's look at what the initial purpose of the bill was. The idea was to create an offence related to wearing a mask or other disguise to conceal one's identity while participating in a riot or an unlawful assembly. We can get into a big debate about the semantics surrounding specific intent, but one fact remains. I heard what the official from the Department of Justice was saying earlier. She explained the differences between the two. I don't think she will contradict me on this point, but the Crown has to show that the individual participated in a riot. Participating in a riot does not just mean that you have both feet on the ground where the riot is occurring. People should put that completely out of their mind, because other factors can be involved.

After that, we're saying that the individual will stand up and say that he or she had a lawful excuse. Even the bill states that there must be the intent to disguise one's identity. It will not be the accused having to prove that his intent was to conceal his identity. The Crown will also have to prove that. Imagine a case where someone is taking part in a demonstration against a political leader, any political leader—you can choose whomever you like. That person is well intentioned and, in fact, a lot of people there are wearing a mask portraying the face of this particular political leader. However, at some point the demonstration turns into a riot. That particular individual had no intention whatsoever of participating in a riot and was actually wearing a mask, not to conceal his identity, but rather to express a point of view.

There were clarity issues in that regard. I repeat, the purpose of the amendment is to retain the same terminology, so that it reflects the way the courts are used to interpreting section 351. It is intended to ensure that what we are doing is creating an additional offence. That is my understanding. We are in favour of creating an additional offence—namely, wearing a mask with the intent of participating in a riot or an unlawful assembly. Thus two additional counts would be available to police. The NDP has no objection to that, as long as the provision is properly drafted and people's fundamental rights are upheld. It's a question of how it reads and how it's worded.

I'd like to come back to some of the statements made by my colleague, Mr. Goguen, regarding events in Montreal. It is clear—if you turned on your television this morning, you will know that what is going on there now is not very pretty—that no one accepts that kind of criminal and unacceptable behaviour, which cannot be tolerated in a free and democratic society such as ours.

Unfortunately, as the Quebec Ministers of Public Safety, Justice and Transport were saying, these petty criminals behind the smoke bomb attacks in the Montreal subway are taking advantage of a particular cause to try and impose their anarchist vision on people. That is, first and foremost, what we need to target and try to stop.

We deplore what is happening in Montreal, and we obviously sympathize with the people who are affected by this. Yet how can we arrive at the desired result while still showing respect for our laws and what Canada is all about? I do not think that a piece of legislation in and of itself, including Bill C-309—as currently worded or modified through our amendments—will succeed in changing that kind of attitude.

The idea behind this bill is to ensure that people who want to express themselves will be afraid to do so, and that concerns us. I think it's important to repeat that point. We are talking about deterrence here. When dealing with criminals, I believe that is the purpose that should be served by a law. A person who commits murder, for example, is subject to a given penalty or sentence. That is the very basis of our Criminal Code. It lets people know what will happen to them if they commit this or that crime. That is what the purpose of a Criminal Code should be, as opposed to preventing innocent people from engaging in lawful activities.

Was this bill drafted in the unavowed hope that it would serve the good citizens of Canada, the people for whom the Conservative Party has so much respect that it has removed legal remedies for hate propaganda, under the Charter of Rights and Freedoms, in order to support freedom of expression? People with a good reason to demonstrate, who do so appropriately, who express themselves by wearing a mask, painting their face or maybe even wearing some kind of disguise, may be so afraid of being caught in this kind of situation that they will stop expressing their views. That is my concern, and I believe that people on this side of the table share that concern. I only wish that were so for members on the other side.

In order to prevent people from committing crimes, appropriate measures need to be put in place, as opposed to punishing innocent people. You will say that this may be justified in a free and democratic society. In the City of Montreal, for example, they could decide to ban the wearing of a mask under their bylaws. It is not up to me to tell a municipality what it should or should not do. However, as a lawyer, I question some of this. I believe this was proposed earlier but was struck down by the courts for being too broad a limitation for which there was no justification.

Does the somewhat higher concentration of violence we have been witnessing recently justify violating people's right to freedom of expression? We'll see. Personally, I don't think we're there yet. Witnesses made the point that during the Olympic Games and at other major events, things had gone very well because proper communications were in place. The people who organized these events had their own security staff because they wanted to be sure their cause would not be highjacked by criminals and other individuals for whom we don't have an ounce of sympathy.

In our opinion, the way the bill is drafted will create problems, so much so that, where sections 65 and 66 are concerned, there are as many opinions about what they mean as people around this table.

So, imagine you're in a court of law facing a smart defence lawyer who starts to raise all sorts of questions about specific intent. One could cite the words of our colleague opposite, Mr. Woodworth, in a speech that I found to be absolutely brilliant, talking about whether the intent is specific or not, and so on. You can imagine the kind of debate this would give rise to.

So when in doubt, what happens? The accused is always acquitted. If that is our objective, let's use wording that does not work, could cause confusion and will ensure that we do not achieve the desired goal. In the opposite case, let us instead rely on a provision that has already proven itself. That provision may be difficult to access, but it would act as a deterrent. People would know that if they took part in a riot, not only would they be subject to a given penalty, but if they did so while wearing a mask or face paint or any other disguise, they would be guilty of an indictable offence.

It is directly creating an additional offence to the current offence of participating in a riot, which is subject to a penalty. If the provision is properly drafted and the offender is subject to a five- or ten-year prison term, that may make sense. However, when the provision is vague and subject to interpretation or is confusing, that is a problem. At some point, the accused will get up and say that he had absolutely no such intent. That would be the case even if there had to be proof of intent and the Crown had proven its case in that regard. The fact that a person never removed his or her mask while participating in a riot or deliberately causing damage, well, all of those things are considered to be aggravating factors by the courts in setting the sentence. Now we are making it an offence in the strict sense of the term in relation to the other alleged offence. In my opinion, that meets all the criteria and avoids a lot of additional discussion. It is a serious offence that would be severely punished through the maximum sentences that are provided for. That was the intended goal. Our job is not to show how smart we are, but rather to find wording that reflects what can be found in the Criminal Code and which has already proven its usefulness.

I understand the point raised by Ms. Morency, who referred to section 255. I can conceive of that type of wording being in the Criminal Code, but given Mr. Richards' main objective, as he explained it to us here, and considering what we are aiming to do, this is not so much about bringing in the notion of a lawful excuse as it is about creating a completely separate offence in order to punish this kind of illegal and criminal behaviour. We are talking about someone taking part in a riot and hiding his or her identity with the intent of participating in a riot, as opposed to simply expressing a viewpoint. Let's not focus on the lawful excuse part of this. Let's focus instead on what we are really trying to accomplish, which is to create a second offence relating to rioting and unlawful assembly.

[The Chair, Conservative, Dave MacKenzie]

Thank you, Madame Boivin.

Ms. Morency, you were mentioned a couple of times in the intervention. I don't know if you have any comments.

[Carole Morency]

I didn't take any of the remarks to be questioning anything I had provided to the committee. I'm here to serve as an aide, if I may, in terms of further explanation, if that's appropriate.

[The Chair, Conservative, Dave MacKenzie]

That's fine.

Mr. Scott.

[Craig Scott, NDP, Toronto—Danforth, ON]

Thank you, Mr. Chair.

I do appreciate the fact that you're here, Madame Morency. When we're dealing with private members' bills, one of the biggest problems we face is not knowing how well they have been vetted from a legal angle, and perhaps having an adviser like this, even in the form of a witness, much earlier in the process for private members' bills would help all of us. I certainly welcome the fact that you're here now.

The second point—and I may continue to do this with respect to the member opposite, Mr. Woodworth—is that the use of names in this kind of context is often necessary for clarity of the record, because we're referring compendiously to an argument or series of arguments where it's much easier to say what Mr. Woodworth was arguing so that people will know where to go in Hansard.

This is not a court of law where from genteel reference to the member opposite, or other counsel, it's obvious whom you're referring to, or even in the House. As you acknowledge yourself, this is not a court of law, and I much prefer that people be identified for the arguments they make than necessarily be cloaked in anonymity. You can refer to me as Mr. Scott or Craig, whatever you want. You can refer to me as much as you want.

Third, I also don't want to get into comparing who can remember their introductory criminal law course better. Mine was more recent, but my memory may be worse than yours, so it may all wash out in the end.

Finally, when one concludes that the side opposite is being disingenuous purely on the basis of one's faith in one's own legal analysis and logic, the conclusion that the other side is being disingenuous is only as strong as your logic. To the extent that you're wrong, it's a real leap of faith to be calling people disingenuous.

That's all I would say.

In terms of the point brought up by Mr. Woodworth about concealing identity as being in some respects superfluous, that alone would be a cause of concern, the fact that there's wording in the provision that doesn't need to be there, that in effect it is a general intent offence, where to conceal identity is simply assumed, or is a strong presumption.

I would ask, Madame Morency, do you think that the words—and perhaps this is going to cause more confusion—“to conceal their identity“, especially in light of the French, where it says “dans le but de dissimuler son identité ”, have any work to do in the clause?